The Asian Human Rights Commission (AHRC) is not surprised by the government’s confrontation with the Judicial Service Commission (JSC) and the courts, as it is part of a consistent pattern that has been going on ever since the executive presidential system was established in 1978. The constitution was established in order to undermine the independence of the judiciary. The recent call by President Mahinda Rajapaksa on the JSC to meet him to discuss its functions, which the JSC refused, only indicates an attempt by the president to establish his patronage over the judiciary. Through the 1978 Constitution the basic structure of the 1948 Constitution was fundamentally altered, by replacing a democratic system with a patronage system, where the very idea of the independence of the judiciary was treated as an alien concept.
The AHRC calls on the Sri Lankan people to come to an understanding, even belatedly, that the independence of the judiciary and the very basic structure of democracy cannot coexist with the executive presidential system. The recent gathering of mobs to protest against the judiciary and otherwise intimidate it is only a reminder of similar attacks in the past.
While appreciating the JSC’s determination not to meet with the president to discuss the functions of the JSC and their determination to defend the rights of the JSC, the AHRC reiterates once again that the very existence of the judiciary in Sri Lanka as an independent institution is under severe threat and it is the duty of the Supreme Court itself, above all others, to defend the institution against the patronage system which will continue to attempt to bring the judiciary under its thumb.
The JSC issued a press statement detailing many attempts by the government of President Mahinda Rajapaksa to trample on its independence. The attack on the JSC came directly after the Supreme Court expressed its determination on the Divineguma Bill, which the Supreme Court held to be unconstitutional until the provincial councils are consulted on the matters involved in the bill. The Supreme Court determination was immediately followed by a protest, which the newspapers reported to be by a crowd sponsored by the government. The 3,000 people who assembled near the parliament included Minister Basil Rajapaksa (one of the brothers of the president) and several other ministers.
The Bar Counsel of Sri Lanka (BaSL) condemned this mob protest as an attack on the independence of the judiciary and stated that it will initiate legal action for contempt of court against the organisers of this demonstration. The BaSL also condemned the use of the state media to attack the judiciary and announced that it will take legal action against the state media concerned.
President Rajapaksa called on the JSC to meet him in order to discuss the functions of the JSC but the JSC, in an official meeting, decided not to meet the president or anyone else regarding its official functions, as such discussions are unconstitutional.
The JSC in its press release stated that it is paying serious attention to the baseless attacks made by both electronic and print media on it recently. It stated that the aim of those who are engaged in such attacks attempting to belittle the functions of the JSC is to destroy the independence of the judiciary and the rule of law in Sri Lanka.
The JSC press release further stated that attacks and pressures have been exercised by people of various positions regarding some of its basic activities. There had been attempts to influence the JSC regarding some of the decisions it has taken. On one occasion, the JSC took disciplinary action against a particular judge, and there have been several attempts to influence it regarding this decision. The JSC reference here is to the disciplinary action against the District Judge Aravindra Perera, who was interdicted following many complaints of corruption. The newspapers mentioned Aravindra Perera as a close friend of Namal Rajapaksa, the president’ son.
The government is also angered by the action taken against Minister Rishard Bathurdeen, who is accused of an attempt to pressurise the magistrate of Mannar, and the action against the attack on the Magistrate’s Court and the High Court of Mannar. These attacks led to a boycott of the courts by judges and lawyers throughout the island. The minister is now facing criminal charges at the Magistrate’s Court and an inquiry into contempt of court at the Court of Appeals. The government has not taken any action against this minister and is engaged in a showdown with the courts regarding this case.
While appreciating BaSL’s initiatives to defend the independence of the judiciary with regard to the attacks on the JSC and regarding the attacks on the courts in Mannar, AHRC is compelled to point out that, given the magnitude of danger to the very existence of the independence of judiciary and the independence of the legal profession itself, the actions taken by BaSL so far are inadequate. Things have reached a point at which it is dangerous for the Supreme Court to declare a bad law as bad or to interdict a bad judge or to take legal action against intimidation of a magistrate and attacks on courts. The system of patronage that is established through the 1978 Constitution demands absolute submission to the president’s authority. Therefore, the attacks on the courts and the lawyers, as independent professionals, will continue. It is time for the BaSL, representing the interests of the lawyers in Sri Lanka — whose existence depends on the existence of an independent judiciary — to develop a consistent strategy for a continuous struggle to save the judiciary and itself from attacks from the patronage system, which is entrenched through the 1978 Constitution.
For more on the conflict of the executive presidency with the judiciary please see: Gyges’ Ring – The 1978 Constitution of Sri Lanka
